Workmen’s Compensation – Time Limit for Bringing Common Law Action


processing-wormens-comp2CH. 88:05 FOR BRINGING COMMON LAW ACTION by Tarran Dookie

Section 4 (3) of the Workmen’s Compensation Act Ch.88:05 states “Where compensation payable under this Act for injury by accident arising out of and in the course of employment is received as such by a workman who is an adult, no action shall be brought against the employer for compensation independently of this Act by such workman in respect of such accident after the expiration of one year from the date on which the cause of action accrued.”

A workman who falls under the purview of the Workmen’s Compensation Act and suffers an injury arising out of and in the course of employment is entitled to compensation under the Act. Furthermore, he can bring a common law action against his employer if he believes that his injury stemmed from negligence on the part of his employer. Section 4 (3) imposes a time limit within which the common law action must be brought. It cannot be brought after the expiration of one year from the date on which the cause of action accrued. The date on which the cause of action accrued is generally construed to mean the date when the injury took place. In the case of Allsop v Petrotrin, the Privy Council ruled that the time limit does not apply if the injured workman has not received his compensation in full. In that particular case the workman brought the common law action three years after the injury but he had not received full compensation. The Privy Council allowed his action, thereby deeming it not to be statute barred for although the year had passed since the injury he had not received full compensation.

Would it make a difference if the injured person received full compensation after the one year has elapsed and only then or later brings the common law action? In the cases Hazel v Reed Monza Trinidad Ltd (2003) and Neeranjan v Caribbean Ispat Ltd (2002) the common law actions were brought after the one year had elapsed since the injuries and after full compensation had been received and the High Court ruled that the actions were statute barred. The High Court decisions were appealed and in a judgement dated April 24, 2006 the Court of Appeal upheld the decisions of the High Court, thereby affirming that the common law actions were statute barred since one year had passed since the injuries took place and compensation was received in full when the actions were brought.

Section 4 (4) of the Act states “In awarding compensation for injury under this Act a Commissioner shall take into account any damages recovered by a workman in respect of the same injury.”

In the Court of Appeal decision referred to above Hamel-Smith J.A. pointed out that whereas Section 4 (4) of the Act allows for damages awarded under a common law action to be taken into account in deciding the Workmen’s Compensation award, there was no provision whereby the Workmen’s Compensation award could be taken into account by the Court hearing the common law action in determining the amount of damages to be awarded. This anomaly could be detrimental to an employer as the injured employee may exploit this loophole in the law and perhaps receive more than a just compensation. It is something employers would hope that the powers that be deal with.